New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Number: 184871

Student’s Name:

Date of Birth: 1/5/10

District Number: 14

Hearing Requested by: Parent

Dates of Hearing:

August 21, 2019

November 13, 2019

January 8, 2020

Actual Record Closed Date: January 8, 2020

Hearing Officer: Gary D. Peters, Esq

August 21, 2019

Advocate Parent

DOE Designee Dept. of Education

November 13, 2019

Advocate Parent

DOE Designee Dept. of Education

January 8, 2020

Advocate Parent

DOE Designee Dept. of Education

PARENT’S EVIDENCE

A. Item Date Description Number of Number Pages Impartial Hearing Request 7/2/19 3 pages

B. Notice Letter 17-18 8/23/17 2 pages

C. Notice Letter 18-19 8/27/18 2 pages

D. Parent Affidavit 1/2/20 2 pages

E. , Affidavit 12/31/19 4 pages

F. , Clinical Director, Affidavit | 6/3/19 2 pages

G. Program Overview Undated 4 pages

H. Contract 2017-2018 2017-2018 3 pages

J. | 12/2/19 Affidavit 2017-2018 1 2017-20181 Student Schedule 2017-2018 1 page

K. Related Services 2017-2018 1 page

L. Initial Evaluation Education 10/15/17 5 pages

M. Progress Report Education 1/15/18 4 pages

N. Final Evaluation Education 5/16/18 4 pages

O. Behavior Intervention Plan 9/22/17 2 pages

P. Sensory Diet 2017-2018 2 pages

Q. OT Initial Assessment 9/18/17 5 pages

R. OT Midyear Assessment 1/2/18 3 pages

S. OT Final Assessment 6/4/18 3 pages

T. PT Initial Assessment 10/16/17 5 pages

U. PT Midyear Progress Update 2/1/18 4 pages

V. PT Final Progress Update 5/17/18

W. Speech and Language Assessment 10/7/17

X. Speech and Language Midyear Progress Report 1/30/18

Y. Speech and Language Progress Note 5/30/18

Z. School Contract 2018-2019 2018-2019

AA. 1//1/19 Affidavit 2018-2019

BB. Student Schedule 2018-2019 CC 2018-2019 Related Services 2018-2019 2018-2019

DD. Educational Evaluation Initial 10/29/18

EE. Educational Midyear Evaluation 1/21/19

FF. Educational Final Evaluation GG 2018-2019 Annual Goals HH 9/3/18 Behavior Intervention Plan II 11//5/10 Sensory Diet JJ 9/17/18 OT Initial Assessment 5/27/19

KK. OT Midyear Evaluation 1/7/19

LL. OT Final Evaluation MM 10/5/18 PT Initial Assessment 5/15/19

NN. PT Midyear Evaluation ‘ole) 5/31/19 PT Final Evaluation PP 10/4/18 Initial Soeech and Language Assessment 1/15/19

QQ. Midyear Speech and Language Evaluation 1/15/19

RR. Final Speech and Language Evaluation SS 2016 Parents Tax Return 5/29/19

INTRODUCTION

On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #184871. The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designee and the parent was represented by their Advocate,

BACKGROUND

(the “Parent”), on behalf of her daughter,“ ”’; filed a due process complaint on 7/2/19 . The parents allege that The New York City Department of Education (“DOE”’) failed to provide with a Free Appropriate Public Education (“FAPE”) for the 2017-2018 and 2018-2019 school years. is an girl and was diagnosed with and hasn’t received an IEP since 4/28/15.

PARENT’S POSITION

The parents maintain that the Committee on Special Education (CSE) has failed to provide their child with a FAPE- Free and Appropriate Public Education for the 2017-2018 and 2018-2019 school year; the CSE hasn’t provided an IEP since 4/28/15.

The parents have placed their daughter at the located in , and are requesting prospective payment/ tuition reimbursement of the student's tuition and related services for the 2017-2018 and 2018-2019 school years.

PARENT’S CASE

As per Parent’s Advocate, is a student; she has been diagnosed with and , is unable to ambulate on her own and presents with gross motor delays and variable tone throughout her trunk and extremities. is nonverbal and communicates through limited gestures an facial expressions. She presents with receptive, pragmatic and oral motor speech and language delays; her expression of her feelings is limited to smiling or crying.

The child has significant fine motor delays and very limited skills development. She needs full 1:1 assistance with all daily living skills, safety and hygiene. is unable to bring a cup to her mouth and is unable use utensils. She is working on self-feeding finger foods. She is not toilet trained. also presents with significant sensory processing delays. She engages in sensory seeking behaviors and requires a sensory diet throughout the day to help her regulate and not become overwhelmed or anxious.

The CSE last held an IEP meeting for the student on 4/28/15 to develop an IEP for the student for the 2015-2016 school year. The parents maintain that the IEP that was created is procedurally and substantively flawed and the recommended placement was not appropriate and resulted in a denial of a FAPE to the student for the 2015-2016 school year. The parents notified the district and enrolled the student at for the 2015-2016 school year.

The CSE did not convene an JEP meeting and did not offer the student a placement for the 2016-2017 school year. The parents notified the CSE and enrolled the student at The CSE did not convene an IEP meeting and has not offered the student a placement for the 2017-2018 and 2018-2019 school years thereby denying the student a FAPE for the 2017-2018 and 2018-2019 school years. The parents notified the district and enrolled their daughter at the located at which is located in and is seeking direct payment of tuition/ tuition reimbursement and related services for the student for the 2017-2018 and 2018-2019 school years.

The Parents assert that is a highly specialized school. The affidavit from Ms. who's the founder and director of state that the school employs a number of methodologies including applied behavior analysis, natural environment teaching, sensory integration, behavior modification. Therapeutic services are integrated in the student's weekly schedule according to the mandate. They have assistive technology team; psychologists; therapists; licensed OTs, PTs, speech therapists.

Ms. stated that the school is housed in a state-of-art facility, and they're able to provide all the services for the student that the student needs.

An affidavit from indicated that she is the clinical supervisor at . Ms. describes some of the progress the student has made and the therapeutic services that the school provides. is student is in a small class receiving one-to-one services in a highly specialized school. There are numerous reports from the two school years demonstrating _ ’s baseline at the beginning of the school year, a mid-yea progress report, and an end-of-year final report for each discipline of each therapy she receives throughout both school years in question. These reports are comprehensive and detail in terms of where the student's deficits were at the time and where the student made progress and what techniques and methodologies were employed in order to help the student to make that progress. The student is receiving all of her related services as well as one-to-one instruction in a small setting.

The school employs master's level teachers in each classroom. The parent is very satisfied with the progress the student made. Pursuant to the parent's affidavit, Parent's Exhibit D, she believes that the student has made progress. Additionally,it is stated that, " provided my daughter with a small, highly individualized special class. They're professional and caring and therapies/methodologies that were beneficial for and helped her to learn and progress.

Ms. opined that the school should meet the criteria in Prong II as a school that is especially designed to address the student's disability and help her make progress. Regarding the third prong of the Burlington/Carter test, the parent did nothing to interfere with the DOE from conducting evaluations or IEP meetings for the two school years in question. The parents have been fully cooperative throughout and did send letters of notice through her advocate for both school years in question when the DOE failed to provide a FAPE for the student prior to enrolling him at the school.

Additionally, the tuition contract states that the parents owe the school tuition payments. Exhibit I is a contract from the 2017/2018 school year and states that the school is owed $98,000 and that no payment have been made. Exhibit #Z is the 2018/2019 contract and Exhibit #AA is the affidavit also stating that that that $98,000 is owed for the 2018/2019 school year . Exhibit # AA is an affidavit from the school, which states that no payments have been made towards the 2018-2019 school year. Exhibit #FF, and that is the parent's tax return, it indicates that the parents' overall income is less than the child's tuition.

The parent states in her affidavit that, "My husband and I signed the tuition contact with for both 2017/2018 and 2018/2019 school years .We're responsible for payment to the school. With a gross income of annually, we're unable to afford to make tuition payments to the school without going into serious debt. The school has been patient as they know that the cases for both school years have been in settlement and that a hearing has been requested.

The Parents are requesting a summary judgment, seeking an order for payment directly to the for both the 2017/2018 and 2018/2019 school years

DEPARTMENT?’S CASE

The DOE failed to provide evidence and rested.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. $1404 et seg. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” M.H. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities musbe provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., U.S. ___, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “ ‘specifically designed’ to meet a child’s ‘unique needs’” and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(C)(1); A.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Row/ey stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

Furthermore, with regard to the sufficiency of the IEP, the Commissioner’s regulations require that: The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including: a. how the student’s disability affects involvement and progress in the general education curriculum....

§ N.Y.C.R.R. § 200.4(d)(2)(i); see also 34 C.F.R. § 300.20(a). In turn, section

200.1(ww)(3)(i) provides, in relevant part that the areas to be considered shall include: (a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student’s relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student’s motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.

With respect to Prong I of the Burlington/Carter analysis regarding whether the DOE provided FAPE, the record reflects that the DOE did not meet its burden of proof. The DOE had no witnesses or evidence to present with respect to their burden to meet Prong I of the Burlington-Carter analysis.

Under Prong II of the Burlington/Carter test, the Parents bear the burden of proof with regard to the appropriateness of for which they seek funding for the 2017-2018 and 2018-2019 school years. N.Y. Educ. Law §4404[1][c]. The Parents must show that offers an educational program that meets ’s special education needs. The issue of the private school's appropriateness depends on whether was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F. 3d at 364. This is a prospective analysis and does not require the Parents to retrospectively demonstrate the child's progress. C.B. v. N.Y.C. Dep't of Educ., 2005 WL 1388964 at *17-18. A private placement, unlike a public p lacement, need not satisfyy a "least restrictive environment" requirement to be prop proper under the IDEA. C.B. v. Special Sch. Dist., 636 F.3d 981, 991 [8th Cir. 2011].

The weight of the evidence supports a finding that the Parents have met their burden to show that the placement they selected was appropriate for their daughter, with a program designed to meet the needs of children with disabilities which integrates speech and language, play, socialemotional development, motor, sensory development and executive functioning to build a solid foundation for academic learning.

The third and final Burlington/Carter criterion for an award of tuition funding is that the claim not be barred by equitable considerations. Equitable considerations do not bar an award of funding because Parents have cooperated with the DOE throughout the special education process.

The equities favor the Parents; a parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. /d. Further, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

The DOE bore the burden of proof regarding equities. Application of a Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE provided no evidence demonstrating lack of cooperation on the part of the Parents.

After considering all the evidence, I order direct payment/reimbursement for the cost of their daughter's tuition, related services as well as transportation at for the 2017-2018 and 2018-2019 school years in the sum of $98,000.00 per school year. All Payments to be made within 30 days of receipt of invoices by the DOE in a form acceptable the DOE. Dated : January 21, 2020

Gary D. Peters

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review Shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (SNYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.